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Judges and Ministers

Anthony Lester

Are judges flirting with ‘judicial supremacism’ by questioning the sovereignty of Parliament? Or are ministers flouting the rule of law, by interfering with judicial independence? Is the Government minded to hobble the judges’ powers to review the way in which ministers and other public officers exercise their powers? Should British courts be given greater powers to remedy breaches of basic human rights and freedoms, or would that mean turning judges into unelected politicians? Are judges competent to decide questions of public policy? Do we need a code of modern constitutional principles to guide the legislative, executive and judicial branches of government? Or are we better advised, as Conor Gearty advised us (LRB, 16 November 1995), not to give more power to ‘unelected, unrepresentative and unaccountable judges’ by weaving the European Human Rights Convention into the fabric of British law, but instead to reform Parliament and the electoral system, and devolve power away from the already over-powerful central government?

Questions of this kind were rarely raised a generation ago; now they are commonplace. There are many reasons for what amounts to a radical change in public perceptions. They include the impact of European law, penetrating with ease Britain’s permeable unwritten constitution; widespread discontent with the way we are governed; Charter 88’s success in getting the question of constitutional reform onto Labour’s agenda; the spectacular development of judicial review of administrative decisions; and unprecedented attacks made on judges by ministers.

These attacks have been concerted, populist and unfair. They have been led by the Home Secretary, Michael Howard (a frequent and bad loser in the courts), and the Chairman of his Party, Brian Mawhinney, who has urged Tory hangers and floggers to write in and complain about lenient sentencing on the part of judges, and has put out as party propaganda a non-existent lecture, in which the Lord Chancellor would supposedly have called the judges to heel. Michael Heseltine has attacked the judges of the European Court of Human Rights, following its judgment in the Death on the Rock affair, hinting that the Government might take away the right of access to that Court (in the event, it was reluctantly renewed in January).

The Lord Chief Justice, along with the retired Law Lords, Ackner and Donaldson, have vigorously counter-attacked against what they see as the threat of executive interference with judicial independence, notably as a result of the proposed introduction of mandatory sentences for persistent serious offenders, which would deny the courts the power to impose a punishment to fit the particular circumstances of the crime. The Master of the Rolls, on the other hand, finds nothing novel or unconstitutional in the Home Secretary’s proposals.

The Lord Chancellor-in-waiting, Lord Irvine, has also entered the fray in a lecture (this one really was given) in which, surprisingly, he criticised the courts for ruling that it is for them rather than for ministers to decide whether administrative procedures are fair, and argued that they should intervene only if a minister’s choice of procedure is what judges stigmatise as ‘irrational’. According to Lord Irvine, it is ‘the constitutional imperative of judicial self-restraint which must inform judicial decision-making in public law’. He also criticised recent rulings that require tougher judicial scrutiny of decisions affecting human rights, while maintaining his support for making the European Human Rights Convention directly enforceable in British courts – a major constitutional change which would mean more rather than fewer applications for judicial review. And he warned liberally-minded judges, like Lord Woolf and Justices Laws and Sedley, against ‘judicial supremacism’ following articles in which they seemed to question the dogma of Parliamentary sovereignty.

Things were very different a generation ago. Then, the judges, influenced by the exigencies of wartime, by pervasive government control in the early postwar period, and by a desire not to be regarded as politically motivated, needed no reminding of Francis Bacon’s magisterial warning to the judiciary of the day: ‘let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.’ It was an age of deference by one group of Old Boys to another, when judicial members of the Establishment deferred to their fellow clubmen, the mandarins of Whitehall, in deciding where the public interest lay. In 1962, Lord Chief Justice Parker saw judicial review as founded on the principle that courts are the mere ‘handmaidens of public officials’, rather than designed to protect the citizen against the misuse of state power.

From Late Victorian times until the early Sixties, judicial restraint bordered on judicial abdication. The judges imprisoned themselves within a doctrine of legal precedent so inflexible that the Law Lords could not overrule their own previous judgments, however wrong-headed or outmoded they had come to seem. They also fettered their powers by adopting literal rules for the interpretation of Acts of Parliament, concentrating on the letter rather than the purpose of the law, and leaving it to Parliament to clear up the statutory mess. At mid-century, judicial review of administrative action was technical and perfunctory. Ministers and civil servants were able to use the broad discretionary powers which they had easily persuaded Parliament to give them, without the inconvenience of effective supervision by the courts to ensure that they used those powers in accordance with modern standards of good administration.

Letters

Anthony Lester (LRB, 18 April) referred to my ‘more recent material’ to support my thesis that a white, male, Oxbridge-educated judicial élite is not to be trusted to decide the questions that would arise if we had a modern Bill of Rights. His contrary thesis is that the senior judiciary and their case law have ‘changed beyond recognition over the past thirty years’ and that they are to be trusted.

Let us look then at their record on freedom of expression, without which other rights can so easily be suppressed or ignored. As presumably the most recent years are the most relevant, we can limit ourselves to the period since 1980.

In British Steel Corporation v. Granada Television (1980) the Law Lords ruled mat journalists’ sources must be revealed. In Schering Chemicals (1981) the Court of Appeal injuncted the showing of a film on Thames Television. In Home Office v. Harman (1982) the Law Lords held the legal officer of the National Council for Civil Liberties to be in contempt of court for showing a journalist material that had already been disclosed in open court. In Defence Secretary v. Guardian Newspapers (1984) the Court of Appeal ordered the disclosure of journalists’ sources about the date when Cruise missiles were to be delivered at Greenham Common, leading to the arrest and imprisonment of Sarah Tisdall. The Law Lords upheld the order. There followed the Spy-catcher saga (1987) and the refusal of the Law Lords to lift the injunction on publication although the book was readily available in this country. In 1986-7 the BBC programmes Out of Court, The Secret Society, Rough Justice and My Country Right or Wrong were the subject of judicial injunction or criticism. Finally, in the most blatant invasion of free speech this century, the Law Lords upheld the Court of Appeal’s refusal to review the Home Secretary’s decision to ban from the BBC and independent broadcasting words spoken by representatives of legitimate political organisations in Northern Ireland: ex parte Brind (1991).

John Griffith (Letters, 9 May) emphasises that a Bill of Rights or written constitution is not itself a guarantee of freedom – one only has to look at Poland or the United States to see that. But it is unhelpful to trot out a list of legal decisions which might support his argument against the judges, without also giving us the judgments and his criticism of them. After all, some of the decisions may have been justified on the facts or because they upheld a basic principle of law, a change in which should only be in the hands of the people through Parliament.

Professor John Griffith (Letters, 9 May) does not explain why he believes that the English judiciary are uniquely incapable of interpreting and applying a Bill of Rights. Nor does he explain why he regards the white and mainly male judges of the European Court of Human Rights as better qualified to protect our basic rights and freedoms without the benefit of a contribution from our own courts.

Professor Griffith refers to a series of cases since 1980 in which English courts have narrowly interpreted the right of free expression. I agree with his criticism of those cases, but his list is seriously incomplete. I would cite other cases like Spycatcher (1990), Derbyshire County Council v. Times Newspapers (1993), Esther Rantzen v. Mirror Group (1994), Elton John v. MGN (1995), Hector (1990) and George Blake (1996) as examples of a much more enlightened approach.

As for the Law Lords’ decision in Brind (upholding the Home Secretary’s decision to ban broadcasting by Sinn Fein and others), I do not understand how Professor Griffith can both object to that decision and oppose the incorporation of the European Convention on Human Rights into our legal system. What the Law Lords decided in that case was that they could not incorporate the Convention through the back door when Parliament had refused to do so through the front door. The only way in which our courts could have reviewed the broadcasting ban using European principles would have been by usurping the powers of Parliament and making the Convention part of English law. The central argument in my essay was that Parliament should incorporate the Convention and that our judiciary are at least as good as those of the rest of the Commonwealth and Europe in acting as constitutional judges giving speedy remedies for breaches of human rights.

Participating in a dialogue with Lord Lester (Letters, 6 June) is a twisty business. He writes that I do not explain why I believe English judges are uniquely incapable of interpreting and applying a Bill of Rights. I expressed no such belief, nor anything like it. He writes that I do not explain why I regard judges of the European Court of Human Rights as better qualified to protect our basic rights without a contribution from our own courts. I expressed no such opinion, nor anything like it.

I ask him a straight question. Does he support the view, held by other of his fellow judges, that English courts, under an incorporated Bill of Rights, should be empowered to invalidate Acts of Parliament?

John Griffith
Emeritus Professor of Law, University of London, Marlow, Bucks

The answer to Professor John Griffith’s question (Letters, 4 July) is contained in my Human Rights Bill, which was passed by the House of Lords last year. I believe that the European Convention on Human Rights (and for that matter the International Covenant on Civil and Political Rights) should be given the same status in English law as European Community law. In other words, existing and future legislation should be construed so as to comply with the obligations contained in those international human rights codes. May I ask Professor Griffith a straight question of my own? Why does he believe that our courts should give less effective remedies under the European Convention than can be given by the courts of most other European states?